Senator Pinochet, former President of Chile, when undergoing medical treatment in London, was arrested on warrants issued by Metropolitan Stipendiary Magistrates. The authorities of Spain had sought his extradition to Spain to stand trial, principally, for his allegedly having authorised, when President of Chile, the torture in Chile of many persons, including Spanish citizens. Pinochet challenged the warrants by way of judicial review proceedings; the Divisional Court quashed them by certiorari on the ground that, as former head of State, he was immune from the jurisdiction of the English courts. The House of Lords allowed an appeal in part by a bare majority (Lords Nicholls and Steyn with whom Lord Hoffmann concurred, Lords Slynn and Lloyd dissenting: R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p. Pinochet [1998] 2 W.L.R. 825, henceforth Pinochet (1)). That ruling was set aside “on the ground that the Committee was not properly constituted” (ex p. Pinochet (No. 2) [1999] 1 All E.R. 577); a rehearing of the appeal took place before a differently constituted Judicial Committee (ex p. Pinochet (No. 3) [1999] 2 W.L.R. 827). It, by a large majority (Lords Browne-Wilkinson, Hope, Hutton, Saville, Millett and Phillips, Lord Goff dissenting), also allowed the appeal in part.

In 1988, Nicholas Mullen fled from England to Zimbabwe. Two months later, he was deported to the United Kingdom where he was charged with, and convicted of, conspiracy to cause explosions likely to endanger life or cause serious injury to property. He was sentenced to thirty years' imprisonment.

Although opinion is divided on the significance of the incorporation of the European Convention on Human Rights (“the Convention”), most agree that the Human Rights Act 1998 is likely to have its greatest influence on the criminal justice process. The latest and best word on the implementation date of the principal sections of the Act is 2 October 2000, but its impact on the exercise of statutory discretion has already been felt as a result of the Divisional Court's decision in R. v. Director of Public Prosecutions, ex p. Kebilene [1999] 3 W.L.R. 175.

In the past five years, the conceptual ambiguities of Parliamentary privilege have come to haunt the courts with a vengeance. Ancient constitutional questions such as what constitutes a “proceeding” in Parliament and what counts as “questioning” a proceeding—encapsulated in colourful nineteenth-century cases like Stockdale v. Hansard (1839) 9 Ad.&E. 1, the Case of the Sheriff of Middlesex (1840) 11 Ad.&E. 273, and Bradlaugh v. Gossett (1884) 12 Q.B.D. 271—have been at the forefront of a clutch of recent decisions. In Prebble v. Television New Zealand [1995] 1 A.C. 321, the Privy Council gave new bite to Parliamentary privilege by ruling (in relation to the New Zealand Parliament) that it would be an abuse of both Article 9 of the 1689 Bill of Rights—which prohibits courts from questioning the freedom of speech and debates or proceedings in Parliament—and of a broader principle of mutuality of respect between Parliament and the judiciary, to allow any party to litigation to “bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading” (above, at 337). As a result, domestic courts stayed two libel actions brought by Members of Parliament, on the basis that the claims and defences involved raised issues whose investigation would infringe Parliamentary privilege (see, e.g., Allason v. Haines, The Times, 25 July 1995). Parliament responded by enacting section 13 of the Defamation Act 1996, allowing individual MPs to waive Parliamentary privilege in order to bring defamation actions. But in an apparent reassertion of the spirit of Prebble, the Court of Appeal expressly approved—albeit outside the context of defamation—the Privy Council's wide definition of privilege as a matter of domestic law (R. v. Parliamentary Commissioner for Standards, ex p. Fayed [1998] 1 W.L.R. 669, noted [1998] C.L.J. 6).

Mr. Naeem and Mr. Mohammad (“the plaintiffs”) were employed by the Bank of Credit and Commerce International SA (“B.C.C.I.”). They were made compulsorily redundant in 1990. In 1998, the plaintiffs, seeking to take advantage of the decision of the House of Lords in Malik v. B.C.C.I. [1997] 3 All E.R. 1, sued B.C.C.I. for “stigma damages”—damages designed to compensate the plaintiffs for the difficulties they had experienced in obtaining work because they were associated, in prospective employers' minds, with the dishonest way in which B.C.C.I. was run. However, there was a problem. Shortly after being made redundant, each of the plaintiffs had agreed to accept a sum equivalent to one month's gross pay “. . . in full and final settlement of all or any claims whether under statute, Common law, or in Equity of whatsoever nature that exist or may exist . . .”. Having entered into this agreement (“the B.C.C.I. settlement”), were the plaintiffs precluded from pursuing their claims against B.C.C.I. for stigma damages? In B.C.C.I. v. Ali [1999] 2 All E.R. 1005, Lightman J. said the answer was “yes”.

In Giumelli v. Giumelli (1999) 161 A.L.R. 473 (Gleeson C.J., McHugh, Gummow, Kirby and Callinan JJ.) the High Court of Australia substantially allowed the appeal from the decision of the Full Court of Western Australia, and by doing so confirmed the emergence of a new law of remedies.

Although the decision of the House of Lords in Kleinwort Benson Ltd. v. Lincoln C.C. [1998] 3 W.L.R. 1095 has done much to rationalise the law on restitution of mistaken payments, the law remains unclear in certain important respects. Two recent decisions have, however, sought to clarify the law.

The decision of the European Court of Human Rights in Chassagnou v. France (judgment of 29 April 1999) has wide legal and practical implications of which only some can be explored here.

The system of land registration was, according to Lord Wilberforce in Williams & Glyn's Bank v. Boland [1981] A.C. 487, 503, “designed to free the purchaser from the hazards of notice—real or constructive—which, in the case of unregistered land, involved him in enquiries, often quite elaborate, failing which he might be bound by equities”. The hapless purchaser of land may well consider the remedy just as hazardous as the complaint. Certainly, in the light of Ferrishurst Ltd. v. Wallcite Ltd. [1999] 2 W.L.R. 667, no obituary can yet be written for elaborate enquiries.

Under what circumstances may a solicitor or forensic accountant who has obtained confidential information from a client act against him? This question was considered by the House of Lords in H.R.H. Prince Jefri Bolkiah v. KPMG [1999] 2 W.L.R. 215, where the House reconsidered Rakusen v. Ellis, Munday&Clarke [1912] 1 Ch. 831 and found the criticisms, both academic and judicial, of the test laid down by the Court of Appeal to be well founded.

The shape of the unfair prejudice remedy—sections 459–461 of the Companies Act 1985—owes much to the influence of Lord Hoffmann, for throughout his judicial career he has played a leading role in the remedy's development (see, e.g., Re a Company [1986] B.C.L.C. 376 and Re Saul D. Harrison & Sons plc [1995] 1 B.C.L.C. 14 (C.A.)). In Re a Company (No. 00709 of 1992) [1999] 1 W.L.R. 1092 (O' Neill v. Phillips), the House of Lords considered sections 459–461 for the first time. In a strong, wide-ranging judgment, Lord Hoffmann delivered the opinion of the House. By reasserting the remedy's contractual focus, he sought to bring greater certainty to its operation; in so doing, he signals a restriction in the remedy's ambit.

In Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG and others (Case C-7/97, [1999] 4 C.M.L.R. 112), the European Court of Justice has clarified the scope of the application of the “essential facilities” doctrine to EC competition law. The Commission defined an “essential facility” as a “facility or infrastructure without access to which competitors cannot provide services to their customers” (B&I Line plc v. Sealink Harbours Ltd., Commission Decision of 11 June 1992, [1992] 5 C.M.L.R. 255 at paragraph 41). Under the doctrine, a dominant undertaking that owns or controls such a facility and refuses, without an objective justification, to make it available to competitors—or makes it available on discriminatory terms—abuses its position of dominance.

Where, following divorce, a mother remarries, it is not uncommon for her to wish to change the surname of the children to that of the stepfather. In these cases the jurisprudence of the courts has established over a substantial period of time that a parent may not unilaterally change the name of a child but that, if the matter is brought before the court, the question of a proposed change must be determined on the basis of the welfare principle. The Children Act 1989 (section 13) had made this explicit where a residence order was in place but, surprisingly, some had questioned whether the automatic prohibition had survived the Children Act in the much larger number of cases where no such order is made. The direct issue before the House of Lords in Dawson v. Wearmouth [1999] 1 F.L.R. 1167 was whether the Court of Appeal had correctly exercised its discretion in allowing an appeal by a mother against the judge's decision to sanction a change of name. In unanimously holding that it had, the House must be taken to have tacitly affirmed the above principles, which will govern the situation in the absence of a court order (for a review of the authorities see the commentary on the Court of Appeal's decision by Jonathan Herring at [1998] C.L.J. 266).

It is axiomatic that divorcing spouses cannot by agreement oust the jurisdiction of the court to award ancillary relief: Hyman v. Hyman [1929] A.C. 601. Finality can only be achieved by obtaining the sanction of the court in the form of a consent order, invoking a procedure which requires full disclosure of all material factors so that the court can exercise its own discretion on the basis of the information put before it: Matrimonial Causes Act 1973, s.33A; Livesey v. Jenkins [1985] A.C. 424. But out-of-court agreements made by the parties are not without significance. Far from it, they will be treated as a very important consideration should the court subsequently be asked by one of the parties to make an award of ancillary relief, and will not usually be departed from unless there are good and substantial grounds for concluding that injustice will be done by holding the parties to their terms: Edgar v. Edgar [1980] 1 W.L.R. 1410. Presumptive enforceability has been criticised as “the worst of both worlds”, as the parties must go to court to determine whether the agreement they have reached is legally binding: Pounds v. Pounds [1994] 1 F.L.R. 775, 791, per Hoffmann L.J. Either the agreement should bind, or it should be wholly disregarded.

The common law tradition strongly favours witnesses giving evidence in public. In the leading case of Scott v. Scott [1913] A.C. 417, the House of Lords ruled that at common law, even embarrassing evidence about sexual impotence in a nullity suit must be so given. Public justice is said to be essential to make sure that judges behave themselves and that witnesses tell the truth. For these two purely altruistic reasons, it is always staunchly defended by the media. In consequence, almost every statute passed to enable the judge to clear the court exempts the representatives of the press.

A highly paid agent sets out to undermine his principal’s business. A doctor wangles sex-for-drugs favours from a patient. An advisor offers self-interested advice to his client. A father engages in an incestuous relationship with his child. In each case the perpetrator is clearly a wrongdoer and the law must somehow respond. But what is the legal wrong and how should the law respond?

Dicey is not fashionable these days, and for understandable reasons. The cocktail of utilitarianism and positivism, the amalgam of Bentham and Austin, that he produced led inexorably to the proclamation of unlimited parliamentary supremacy. This is widely, though with much exaggeration, conceived to be the major prop of authoritarian government. It is also, more correctly, seen as hostile to the idea of human rights possessed by persons against governments. In one sense, the decision to incorporate the European Convention on Human Rights into UK domestic law is an authoritative repudiation of the Diceyian heritage.

Most of the academic discussion of the Trident Beauty has focused on its relevance to the law of restitution, in particular, restitution against third parties. This is understandable given the role restitution played in the judgments. Opinions have differed as to whether the House of Lords reached the correct result and this perhaps reflects the level of debate over what principles should govern restitutionary claims in this area. The restitutionary points were not, however, the beginning and end of the matter and some important issues of assignment have been marginalised in the wake of the restitutionary debate. The assignment of contractual rights is one part of the standard contract text that still defies analysis. However, the recent spate of difficult assignment related cases, evidencing its continued importance to commerce, as well as the near settlement of the modern rules of privity, suggest that the time is ripe to take it out of the too hard basket and put it on the agenda for the next decade. It is not, however, the aim of this paper to detail, much less resolve, every problem that exists within this area of the law. The much more modest aim here is to investigate the assignment issues raised by The Trident Beauty. The end result is that these issues resolve the restitutionary problem raised by the case if the suggested analysis is adopted. It is hoped that this paper will also show that this area of the law is simplified if there is a proper understanding of the relationship between the assignee and obligor and more time spent on construing the rights assigned to the assignee and the obligations of the obligor rather than taking refuge too quickly in phrases such as “the assignee takes subject to the equities” and “the assignee can be in no better position than the assignor”. This paper begins with a look at the decision in The Trident Beauty itself.

According to the English law of restitution, a payment under a mistake of fact can usually be recovered from the recipient, at least if the mistake is a liability mistake or “fundamental”. In three-party situations the situation therefore seems to be straight-forward: independently of the relationship of each of the three parties to each other, the plaintiff is the payer and the defendant is the recipient. However, a closer look into the case law and literature reveals that there are problems.

The issue of ratification is one whose “tentacles creep into every part of company law”. When a wrong has been done to the company, it is the mechanism which determines whether that wrong can be put right, and, if it can be, whether it will be; whether the wrongdoers ought to be released from their liability, and, ultimately, whether litigation can and will be commenced. That is a lot to ask of a single doctrine, and it is not, therefore, surprising to find that this topic has been described as being “singularly muddled”. The confusion has not been helped by the fact that the courts have often avoided tackling this difficult area head on, one judge going as far as to say “I do not think that it is necessary, nor do I feel competent to disentangle the many threads of principle in this tangled skein”. The Law Commission has also said that the “law on ratification is by no means clear” but has failed to tackle the complexities of the issue, stating that “[a]lthough there may be a need for modernising and simplifying the law of ratification, we are of the firm view that any changes need to be considered in the context of a comprehensive review of directors’ duties.” However, when recently given such an opportunity the Law Commission did not consider any changes to the law regarding ratification.